Via mateosf, FBI director Robert Mueller and his agency might be in some serious trouble.
The Electronic Frontier Foundation has just published a report on the misuse of a National Security Letter by the FBI. Using the Freedom of Information Act, they obtained FBI documents showing that the FBI purposely delayed an investigation in the 2005 London bombings. From the EFF blog:
FBI documents show that, over the span of three days in July 2005, the Charlotte Division of the FBI first obtained educational records pursuant to a grand jury subpoena, and then -- at the direction of FBIHQ -- returned the records and sought them again pursuant to an improper NSL.
The improper NSL was refused by the university, but the FBI finally obtained them pursuant to a second grand jury subpoena. Later in July 2005, FBI Director Robert Mueller used the delay in obtaining these particular records as an example of why the FBI needed administrative subpoena power instead of NSLs in testimony.
The misuse of the NSL was not formally reported until February 2007, a short time before Inspector General Glenn Fine’s report on the abuse of NSLs was due before Congress. While the Inspector General's report identified dozens of instances in which National Security Letters may have violated laws and agency regulations and were not reported, this is the first time documents have shown that top FBI executives were aware of a misuse before it was officially reported. It took almost two years before the incident was formally reported.
Ryan Singel at Wired fills in a few gaps:
At issue is the FBI's probe of a former chemistry graduate student at North Carolina State University who was then suspected aiding the deadly attack. The student has since been cleared of any involvement.
The agent investigating the student in the Charlotte, North Carolina field office obtained a grand jury subpoena demanding some university records on the student. But he was then advised by superiors in Washington DC to return the papers and draft an NSL demanding the documents instead.
Under the USA Patriot Act, FBI counterterrorism investigators can self-issue such letters to get phone records, portions of credit reports and bank records, simply by certifying that the records are relevant to an investigation. Unlike subpoenas, NSLs do not require probable cause, and at the time obliged the recipient to not discuss the demand with anyone, ever. In contrast, gag orders attached to grand jury subpoenas have expiration dates.
FBI agents have relied heavily on the power, issuing more than 100,000 NSLs in 2004 and 2005 combined. The first audit of the FBI's use of the power found the agents became sloppy in their use of the power and one HQ office went rogue and issued hundreds of fake emergency requests for phone records.
The FBI knew that the university records were not obtainable via an NSL, and the university properly rejected that request--a request that had already fulfilled once, legally in response to a grand jury subpoena. And which was fulfilled, again, when the FBI field office came back with the proper subpoena after the whole exercise in NSL futility.
An exercise that has all the appearances of having been set up for Robert Mueller to appear two weeks later before a Senate committee.
Mueller, testifying before the Senate Judiciary Committee, portrayed the university as intransigent and said the incident showed the FBI needed the power to force the turnover of all sorts of records without having to involve the court system.
"Now in my mind, we should not, in that circumstance have to show somebody that this was an emergency," Mueller testified on July 27, 2005. "We should've been able to have a document, an administrative subpoena that we took to the university and got those records immediately."
Some of the declassified documents suggest that Mueller was himself misled by underlings, and wasn't told that the records had already been turned over in response to a subpoena.
It would appear officials in the FBI, at very high levels that may or may not have included Mueller, conspired to lie to Congress. That would be a felony. It also raises the question of whether there are other violations of NSLs that have never been reported and that the FBI might still be trying to keep under wraps.
The Senate Judiciary Committee has an already scheduled hearing about NSLs. It's been postponed from tomorrow to the following Wednesday, April 23, and hopefully the witness list will be expanded to include Mueller. He's got some explaining to do.
